EXHIBIT 10.3
POST-CLOSING AGREEMENT
This POST-CLOSING AGREEMENT (this "AGREEMENT") is made as of April 13,
2000, by and between (a) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC., a Massachusetts corporation
(the "BORROWER") and (b) CITIZENS BANK OF MASSACHUSETTS, a Massachusetts savings
bank (the "LENDER").
All capitalized terms not defined herein but defined in the Credit
Agreement, dated of even date herewith (as the same may be amended, modified,
supplemented, extended or restated, from time to time, the "CREDIT AGREEMENT")
by and between the Borrower and the Lender, shall have the meanings given to
such terms in the Credit Agreement.
Preliminary Statements:
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WHEREAS, the Borrower has requested that the Lender enter into the Credit
Agreement and to make certain Extensions of Credit to or for the benefit of the
Borrower, as provided for therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and to the obligation of the Lender to make such Extensions of Credit
that the Borrower enter into this Agreement;
NOW, THEREFORE, in order to induce the Lender to enter into the Credit
Agreement and to make such Extensions of Credit to or for the benefit of the
Borrower, and in consideration thereof and in consideration of the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower hereby
agrees with the Lender as follows:
1. First Deadline. By FRIDAY, APRIL 21, 2000, the Borrower shall deliver
(or cause to be delivered) to the Lender the following documents, each in form
and substance reasonably satisfactory to the Lender:
1.1 the original signature of the Clerk on the Certificate of Clerk for
the Borrower which was delivered on or prior to the Closing Date; and
1.2 Certificates of foreign qualification for the Borrower, as issued by
the North Carolina Secretary of State and the Texas Secretary of State.
2. Second Deadline. By FRIDAY, MAY 12, 2000, the Borrower shall deliver (or
cause to be delivered) to the Lender the following documents, each in form and
substance reasonably satisfactory to the Lender:
2.1 the Subsidiary Guaranty and the Subsidiary Security Agreement, as
executed by a duly authorized officer of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc.,
together with the signature of such officer properly witnessed and notarized
thereon;
2.2 a copy of the resolutions of the Board of Directors of ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ of Texas, Inc. authorizing (i) the execution, delivery and performance of
the Financing Documents to which it is a party and (ii) the granting by it of
the Liens created pursuant to the Security Documents to which it is a party, all
as certified by the Secretary or an Assistant Secretary of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of
Texas, Inc., which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded;
2.3 a certificate of the Secretary or an Assistant Secretary of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc., as to the incumbency and signature of the
officers of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc. executing any Financing Document to
which it is a party;
2.4 a true and complete copies of the Articles (or Certificate) of
Organization (or Incorporation) and By-Laws of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc.,
as certified by the Secretary or an Assistant Secretary of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of
Texas, Inc.;
2.5 certificates of legal existence, corporate good standing and foreign
qualification for ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc., all of recent date issued by
the appropriate Governmental Authorities;
2.6 an executed legal opinion of Ropes & ▇▇▇▇, counsel to ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ of Texas, Inc., covering such matters related to the transactions
contemplated by the Financing Documents described in subsections 2.1 to 2.5
(inclusive) of this Agreement the Lender may reasonably request;
2.7 date-stamped carbon copies of all UCC-1 Financing Statements from
the Borrower and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc. in favor of the Lender, as
filed with the applicable Governmental Authorities and which are necessary to
perfect the security interest granted to the Lender in the collateral under the
Security Documents; and
2.8 date-stamped carbon copies of all UCC-3 termination statements
necessary to terminate the Liens (other than Permitted Liens) granted by the
Borrower or ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc. to any Person (other than the
Lender).
Until such time as all of the items described in subsections 2.1 to 2.6
(inclusive) above have been completed, in accordance with the terms and
conditions contained herein, the Borrower shall not, without the prior written
consent of the Lender,
(a) make any advance, loan, extension of credit or capital
contribution, or purchase any stock, bonds, notes, debentures or other
securities of, or any assets constituting a business unit of, or make any
other investment in, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc.; provided however,
nothing contained herein shall prohibit the Borrower from making, in the
ordinary course of its business, advances, loans, extensions of credit
and/or capital contribution to ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc. which
collectively do not exceed the aggregate sum of Fifty Thousand and 00/100
Dollars ($50,000.00); or
(b) enter into any transaction (including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any
service) with ▇▇▇▇▇▇▇▇▇ &
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▇▇▇▇ of Texas, Inc., unless such transaction is otherwise (i) in the
ordinary course of business; and (ii) upon fair and reasonable terms no
less favorable to the Borrower than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate; provided,
however, nothing contained in clause (ii) of this paragraph (b) shall
prohibit the Borrower from continuing to provide to ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of
Texas, Inc., on the same terms and conditions as currently in effect, the
various mailing, payroll and other administrative services that the
Borrower currently provides to ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc.
3. Third Deadline. By WEDNESDAY, MAY 31, 2000, the Borrower shall deliver
(or cause to be delivered) to the Lender the following documents, each of which
shall be in form and substance acceptable to the Lender in reasonable
discretion:
3.1 The Acknowledgment and Consent attached to the Collateral Assignment
of Lease for the Canton, Massachusetts real estate, as executed the landlord of
such real estate;
3.2 Landlord's Consent and Subordination Agreements for all of the real
estate leased by the Borrower (other than the Canton, Massachusetts real estate)
or ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas, Inc., which real estate includes the following:
3.2.1 Tempe, Arizona;
3.2.2 Petaluma, California;
3.2.3 Denver, Colorado;
3.2.4 Somers, Connecticut;
3.2.5 Tampa, Florida;
3.2.6 Waukegan, Illinois;
3.2.7 Boston, Massachusetts;
3.2.8 Ann Arbor, Michigan;
3.2.9 Bloomington, Minnesota;
3.2.10 South River, New Jersey;
3.2.11 Carmel, New York;
3.2.12 Greensborough, North Carolina;
3.2.13 Miamisburg, Ohio;
3.2.14 Stafford, Texas;
3.2.15 Chantilly, Virginia;
3.2.16 Kent, Washington; and
3.3 Certificate of Tax Good Standing for the Borrower, as issued by the
Massachusetts Department of Revenue as of a recent date; and
3.4 Certificate of Tax Good Standing for ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ of Texas,
Inc., as issued by the Texas Department of Revenue as of a recent date.
4. Event of Default. Notwithstanding any provision contained in any of the
Financing Documents to the contrary, any failure of the Borrower to punctually
perform,
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observe, comply with or satisfy any covenant, agreement or condition contained
in Sections 1, 2 or 3 of this Agreement shall constitute an Event of Default
under the Credit Agreement.
5. Further Assurances. The Borrower will do all such acts, and will furnish
to the Lender all such agreements, instruments, filings, certificates, legal
opinions and other documents and will do or cause to be done all such other
things as the Lender may reasonably request from time to time in order to
effectuate the transactions contemplated in this Agreement.
6. Miscellaneous.
6.1 Counterparts. This Agreement may be executed in more than one
counterpart, each of which taken together shall constitute one and the same
instrument. This Agreement shall become effective only upon execution by all
parties hereto.
6.2 Headings. Headings appearing in this Agreement are intended for
convenience only and do not constitute, and shall not be interpreted to be, a
part of this Agreement.
6.3 Notices. All notices required or permitted hereunder shall be in
writing and delivered in accordance with the provisions of the Credit Agreement.
6.4 Fees, Costs and Expenses. The Borrower agrees to pay, or to
reimburse the Lender, as the case may be, on demand, for all fees, costs and
expenses (including reasonable legal fees, costs and expense) incurred or paid
by the Lender in connection with consummating the transactions contemplated by
this Agreement.
6.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon the respective heirs, successors and assigns of the parties hereto.
This Agreement and any rights and remedies of the Lender hereunder may be
assigned in whole or in part by the Lender at the Lender's discretion.
6.6 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS.
6.7 Governing Law; Jurisdiction. This Agreement is executed and
delivered under seal and shall be construed in accordance with and governed by
the laws of The Commonwealth of Massachusetts, without giving effect to the
conflict of law provisions thereof. The Borrower submits itself to the non-
exclusive jurisdiction of the Courts of The Commonwealth of Massachusetts for
all purposes with respect to the Financing Documents and the Borrower's
relationship with the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered under seal by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
/s/ [signature appears here] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
WITNESS: CITIZENS BANK OF MASSACHUSETTS
/s/ [signature appears here] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
COMMONWEALTH OF MASSACHUSETTS
Norfolk County, ss. April 12, 2000
Then personally appeared the above-named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as President of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., before me.
/s/ ▇▇▇▇▇▇ ▇. Read
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Notary Public
My commission expires: 12/1/00
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Plymouth County, ss. April 13, 2000
Then personally appeared the above-named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Senior Vice
President of Citizens Bank of Massachusetts, and acknowledged the foregoing
instrument to be his free act and deed and the free act and deed of Citizens
Bank of Massachusetts, before me.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Notary Public
My commission expires:
August 27, 2004
[AFFIX NOTARIAL SEAL]
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